For anyone facing a criminal accusation in Austria, the fear is often not only the penalty. It is the conviction itself – the entry in the criminal record that can follow you across borders, appear on a certificate of good conduct and put a residence permit, a job or a professional licence at risk. For a foreign national living, working or studying in Austria, that shadow can weigh heavier than the sentence.

Austrian law offers a route that ends many cases without a conviction at all: the diversion (Diversion), the diversionary disposal under §§ 198 ff StPO. It is neither a conviction nor an acquittal (Freispruch, in German), and it is not the same as a discontinuation of the proceedings under §§ 190–192 StPO. It is best understood as a lawful, agreed response to wrongdoing – one that stops short of the weight of a conviction.

On this page I explain, as a criminal defense lawyer in Vienna, what a diversion is, when it is available, which measures it can involve and how a defense can be built around it. A diversion is often the single most valuable outcome a defense can secure.

What is a diversion?

A diversion is neither a conviction nor a discontinuation of the proceedings under §§ 190, 191 StPO. It is best understood as an „agreement“ with the prosecuting authorities that leads to no entry in the criminal record. In substance, it is a rule-of-law response to misconduct that does not carry the intensity of a conviction.

That single feature – no entry in the criminal record (Strafregister) – is what makes it so valuable. A diversion does not show up on a criminal record certificate, which for many people, and for foreign nationals in particular, matters more than the measure itself.

How a diversion comes about

First, the facts must be „sufficiently clarified“. That means the criminal investigation has been concluded and the public prosecutor has reached the view that the case cannot be discontinued under §§ 190 to 192 StPO. On a closer look, the prosecutor must consider that a conviction is likely.

If, however, the prosecutor concludes that – although a conviction is likely – it is not necessary to punish the offender under the Criminal Code (Strafgesetzbuch, StGB), and that the offender can be kept from committing further offences by other measures, the prosecutor may proceed „by way of diversion“. But this is only possible if certain requirements are met.

Requirements for a diversion

Three statutory bars must be cleared before a diversion can even be considered. Each of them removes whole categories of offence from the outset.

1. A ceiling of five years. The offence must not be punishable by more than five years‘ imprisonment. This excludes a great many offences that the law threatens with a high penalty – for instance serious violent offences such as intentional grievous bodily harm (absichtlich schwere Körperverletzung, § 87 StGB) or bodily injury with lasting serious consequences (§ 85 StGB). For the same reason, property offences whose damage exceeds EUR 300,000 are also excluded, because they then carry more than five years.
2. The guilt must not be „severe“ (schwere Schuld). Within the range typical for the offence, the conduct must not display any particular intensity. In other words, judged against the usual manner of committing that offence, the act must not be exceptionally reprehensible or entail particularly grave consequences.
3. The offence must not have caused the victim’s death. Here the law provides one exception: where the person who died was a close relative (Angehöriger) of the offender and was killed through the offender’s negligent conduct.

Bodily injury and assault are a frequent field for diversion; where the offence stays below the five-year ceiling, the door remains open (assault charge, in German). What „severe guilt“ means, the Austrian Supreme Court has spelled out.

Acceptance of responsibility – not a full confession

Beyond the three statutory bars, the case law adds a further requirement: an acceptance of responsibility (Verantwortungsübernahme) by the accused.

This acceptance of responsibility need not reach the quality of a comprehensive and remorseful confession, as the Supreme Court makes clear:

Whether, and to what extent, an accused person should accept responsibility is often anything but easy to answer in practice, and it takes a defense lawyer a great deal of experience to manage that „tightrope walk“. The difficulty lies in accepting responsibility without giving away too much on the question of severe guilt – and without making an admission that could matter in a possible civil claim for damages.

Prior convictions and earlier diversions

Prior convictions rule a diversion out. For reasons of individual deterrence, where there is a previous conviction – above all a relevant one – it can no longer be assumed that the measures tied to a diversion are capable of keeping the offender from further offences of the same kind. Put simply, the legislature fears that a diversion would be „too little“ to deter someone who has already been convicted once before.

A diversion that has already been granted on an earlier occasion – in particular for a similar offence – as a rule rules out a further diversion.

The four diversion measures

The law provides several measures that go together with a diversionary disposal. Which one is appropriate depends on the offence and on the individual case.

It helps to see where a diversion sits between the other possible outcomes of a criminal case.

The measures in detail

Payment of a sum of money (§ 200 StPO)

A diversion can consist of the payment of a sum of money. It is possible to apply for a deferral, and also for payment in installments, where the amount would hit the offender unduly hard. The measure is meant to be a real burden, but not a ruinous one.

Community service (§ 201 StPO)

Community service (colloquially „social work“ or „social hours“) is an alternative measure. The prosecutor or the court can require the accused to perform community work to a fixed extent – around 60 to 80 hours. This is arranged together with the association Neustart, which organises a placement for the community service with the accused. The work must be completed within half a year.

A probation period and instructions (§ 203 StPO)

The accused may also be given a probation period during which he must not commit any criminal offence. If he does commit an offence within the period allowed – for example two years – the proceedings that were provisionally discontinued by way of diversion can be revived, and a conviction can follow. The probation period can be combined with instructions (Weisungen) – for instance that the accused must undergo anti-aggression therapy.

Victim-offender mediation (Tatausgleich, § 204 StPO)

In a victim-offender mediation, the accused pays a sum in compensation for pain and suffering to the injured party, or compensates the injured party in another way – for example by making good the property damage caused.

Diversion in juvenile criminal law

For juveniles and young adults, diversion is open to a number of relaxations. Under §§ 6 and 7 of the Juvenile Court Act (Jugendgerichtsgesetz, JGG), the justice system applies diversion preferentially in cases of minor offences in juvenile criminal law (in German). For younger defendants, the threshold for a diversionary disposal is lower than for adults.

If the court refuses a diversion although the requirements are met

There are cases in which a court, even though the requirements for a diversion are present, nonetheless concludes that no diversion should be applied.

In such a case, the judgment can be challenged by an appeal (in German) on the ground of nullity under § 281 para 1 no 10a StPO – the so-called „diversion complaint“ (Diversionsrüge). In that remedy, the appellant must set out why the first-instance court ought, after all, to have proceeded by way of diversion.

Why a diversion is worth fighting for

A diversion offers the enormous advantage of escaping a criminal conviction and the consequences that come with it. That is why it is frequently more advantageous to accept a diversion offer – or even to shape the entire defense strategy so that an offer of diversion comes from the public prosecutor or, ultimately, from the court. For an international client in Austria, that difference can decide far more than the case file alone suggests.

Frequently asked questions about diversion in Austria

Related articles